Justice for Immigration’s Hidden Population: Protecting the Rights of Persons with Mental Disabilities in the Immigration Court and Detention System, a study recently released by Texas Appleseed and Akin Gump Strauss Hauer & Feld LLP, a Signatory to the Law Firm Pro Bono Challenge^®, examines the treatment of persons with mental disabilities in the immigration court and detention system.  Eighty-six percent of detained immigrants in the Texas system have no legal representation.  This itself is a major problem (see Appleseed’s 2009 report Assembly Line Injustice), but it just sets the baseline when it comes to the mentally disabled in detention, who encounter more significant access to justice problems along with deficiencies in the ability to obtain adequate care and diagnosis.

Texas Appleseed and Akin Gump offer a series of policy reforms meant to address the specific problems identified.  The findings and recommendations are the product of numerous interviews with immigration judges, enforcement officials, attorneys, and medical professionals as well as extensive reviews of immigration court records and government documents (obtained through an FOIA request) containing court statistics, detention facility reviews, and information on detainees with mental disabilities.

The report lists the following key policy recommendations for the Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) and the details of why they are necessary:

• Immigrants with mental disabilities should be detained only when required by law, for national safety concerns, or for risks to health and safety.

Currently, ICE has authority to release detainees on parole, bond or into the Alternatives to Detention Program.   However, this discretion is rarely exercised, even in the cases of immigrants with mental illness who need to remain with family or caregivers or who a criminal court has found incompetent.  This complicates the detainee’s condition and hurts the system as well because of the high costs associated with detaining people with such conditions.

• Detained immigrants with mental disabilities should be placed in the least restrictive settings appropriate to their needs.

Under the current system, ICE has almost unlimited power to detain immigrants in any facility and to move them to other facilities for the convenience of the government.  Most of these facilities have prison-like conditions which only exacerbate the symptoms of the mentally disabled.

• ICE should establish improved and consistent procedures for screening and diagnosis in detention.

The current policy purportedly requires an initial health screening within 12 hours and, if a mental illness is suspected, a mental health evaluation within 14 days.  This policy is not routinely followed and the screenings are inadequate.

• ICE should improve health care in detention facilities.

ICE reported that there were only three psychiatrists and no psychologists employed at the five largest Texas detention facilities, which hold more than 5,000 people every day.  This lack of adequate healthcare results in both over and under medication of detainees.

• ICE should train guards and other detention center personnel to identify and interact appropriately with detainees with mental disabilities.

This is simply not done, and disabled detainees are punished by guards as unruly.  For example, of the ten training records reviewed in 2008 at the El Paso Processing Center only one had documented suicide prevention training.

• ICE should adopt enforceable detention standards with a meaningful enforcement and oversight process.

The standards and procedures implemented by ICE and DHS are currently not enforceable regulations.  Despite a voiced “commitment to better management of detention facilities,” violations of the standards are pervasive and go completely unpunished.

• An independent office should be established within DHS or the Department of Health and Human Services responsible for health care of all those in DHS custody.

A division of the Public Health Service (PHS), called the Department of Immigration Health Services (DIHS), currently provides healthcare in the immigration detention system.  However, PHS officers working at ICE facilities follow ICE procedures and do not have procedures of their own.  Because ICE’s primary mission is law enforcement and deportation, this has led to the common standard of “deportable health” – requiring that a detainee be just healthy enough to be deported.

• DIHS should develop an electronic medical records management system.

ICE still uses paper for all medical and mental health records of detainees and those records are maintained separately at any locations a detainee is transferred through.   ICE has requested funding for 2011 to begin development of an electronic system.

• DIHS should ensure immediate transfer of an immigrant detainee’s medical records during facility transfer.

In 2008, 24 percent of all detainees were transferred at least twice.  The paper medical records often do not make the journey with them, and, as a result, they experience a lapse or error in or discontinuation of treatment and medication.  Even when attorneys request that the records be transferred they frequently are not.

•  DIHS should provide detainees and their attorneys with timely access (within 24 hours of request) to medical records.

Current DIHS policy requires attorneys to file FOIA requests to obtain their clients’ medical records.  This process can take up to four months and most detainees do not have that much time to wait.  In one case, an Akin Gump pro bono attorney was denied access for six months.  Often these documents are vital to immigration proceedings, particularly when a client does not have the mental capacity to testify to his or her own illness.

• The Department of Justice (DOJ) should establish consistent procedures for recognizing respondents who may have mental disabilities.

No guidelines exist for immigration judges to identify immigrants with mental disorders who come before them.  While those who experience acute psychotic episodes are recognized, countless others with serious mental health issues are not.  These individuals proceed through the system, often unrepresented, in the normal manner but without the real ability to defend themselves, and, hence, are frequently deported.

• DOJ should establish standards for proceeding (a separate docket) once a court recognizes a mental disability.

The controlling law only requires that immigration proceedings satisfy the most basic due process protections and that respondents have the chance to present and object to evidence.  Combine these minimal protections with the widespread lack of representation, and immigrants with mental disabilities become “easy targets” for deportation.  Separate immigration court dockets currently exist for unaccompanied minors and detained immigrants.  Similarly, a mental health docket could be established.  Courts could apply the standard of competency from the criminal court system to allow access to the special docket.

• DOJ should establish procedures for meaningful collection of data regarding respondents with mental disabilities in the immigration system.

No one knows for certain how many immigrants with mental disabilities and competency issues are processed through the system each year.  One immigration judge estimated that as many as 20 percent of the respondents in detained dockets have mental disabilities.

• Adopt clear procedures governing safe domestic release or repatriation of detainees.

There are currently no procedures in place to ensure that immigrants with mental disabilities are safe upon release or deportation.  Detainees are often just released at the nearest bus station, even if it is thousands of miles from where they were originally apprehended and they may lack the capacity to find their own way.  Deportation can be even worse, with horror stories of mentally disabled deportees who have vanished and are now missing persons.

The full report can be found here.  See more coverage on the report here.

We are grateful for the assistance provided by Pro Bono Institute intern Anthony L. Moffa.